Brown, Application for Reconsideration [2025] PBRA 269 (09 December 2025) [2025] PBRA 269

PBRA
Brown, Application for Reconsideration [2025] PBRA 269 (09 December 2025)
[2025] PBRA 269 · 2025-10-17
[1]This is an application by Brown (the Applicant) for reconsideration of a decision (the Decision) of a panel (the Panel) of the Parole Board (the Board) dated 17 October 2025 not to direct his release. The decision was made following a review conducted by way of an oral hearing on 2 October 2025.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law,(b) that it is irrational and/or(c) that it is procedurally unfair. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are: the application and representations dated 5 November 2025; the Decision; the case dossier before the Panel of 780 pages; and an email dated 14 November 2025 from the Public Protection Group (PPG) on behalf of the Secretary of State. Request for Reconsideration[4]The grounds for seeking a reconsideration are as follows: a) The Decision resulted in procedural unfairness in that the Panel(i) failed to explore with the prison psychologist why her evidence at the hearing had changed from the opinion expressed in her report;(ii) did not allow the Applicant's legal representative to further question the prison psychologist witness following evidence from the prison psychologist about the Risk Management Plan (RMP); and(iii) did not allow the Applicant the opportunity to give further evidence himself. b) The Decision was irrational in that it failed to consider sufficiently (i) the fact that mental health support would be available in the community despite the fact that the prison Mental Health In-reach Team made it clear in its own report that a referral would be made to the Community Mental Health Team; (ii) the measures which would be in place to manage the Applicant's risks following any move on from Approved Premises; and (iii) the extent and effect of any risk arising from the Applicant's beliefs about Muslims. Background[5]On 5 June 2009, at the age of 22, the Applicant was sentenced to imprisonment for public protection (IPP) after pleading guilty to wounding with intent to cause grievous bodily harm. No separate penalty was imposed for possessing an offensive weapon in a public place, criminal damage, assault with intent to resist arrest, and two offences of assault occasioning actual bodily harm and in respect of one further offence of possessing an offensive weapon of which he was convicted after trial. The minimum custodial term under the IPP was set at 3 years 28 days after taking into account time spent in prison on remand and his tariff expired on 2 July 2012.[6]The Applicant had numerous previous convictions dating from 2002 when he was a juvenile. These included convictions for theft, threatening behaviour, driving whilst disqualified, driving over the prescribed alcohol limit, resisting police officers, interfering with a motor vehicle, battery, failing to surrender to custody and assaulting police officers. Some offences were committed when on bail or subject to community orders.[7]Further offences were committed during the course of the current sentence. On 8 September 2014, the Applicant was sentenced to concurrent terms of 42 months imprisonment for possession of Class A and Class B drugs with intent to supply and a consecutive term of 40 months for possessing a prohibited firearm and ammunition and 6 months for escaping from lawful custody. These offences were committed after absconding from open prison.[8]The Applicant was eventually released on licence in July 2018 by the direction of the Board following an oral review hearing. His licence was revoked in June the following year as a consequence of drug related allegations and possession of a Samurai sword and he was returned to custody. However, he was found not guilty of any offence and was re-released in April 2021. Nonetheless, the panel which conducted the Applicant's review noted that he had been involved in high risk situations with the potential for violence. He had also assaulted another prisoner in February 2021 for which he was later sentenced on 4 February 2022 to 12 months imprisonment suspended for 18 months with a requirement to complete the Resolve Programme.[9]On 21 September 2022, the Applicant's licence was apparently revoked and he was returned to prison. Neither his licence nor the Secretary of State's revocation decision is in the dossier. He had been arrested for drug offences and on 25 April 2023 he was sentenced to 3 years imprisonment for possession of cocaine with intent to supply.[10]The Secretary of State then referred the Applicant's case to the Board to consider whether or not to direct his release. In the event that release was not directed, the Board was asked to consider whether he should be transferred to open prison conditions. By a decision on the papers dated 14 May 2023, a single member panel neither directed release nor recommended a transfer to open conditions as the Applicant was still subject to the latest custodial sentence. Current parole review[11]By notice dated 17 April 2024, the Secretary of State again referred the Applicant's case to the Board to consider whether to direct his release and, if not, to advise whether he should be transferred to open conditions. By an amended notice dated 18 January 2025, the Board was asked, in addition, to consider whether it would be appropriate as an IPP prisoner for the Applicant to be released unconditionally.[12]After a number of adjournments, the review was conducted by the Panel, comprising a psychologist member and two independent members, on 2 October 2025 by video link. The Applicant, then aged 39, attended and was legally represented.[13]The case dossier of 780 pages included written reports by the Applicant's Prison Offender Manager (POM), his Community Offender Manager (COM), a prison psychologist and a psychologist commissioned on the Applicant's behalf. It also contained an assessment by a prison psychiatrist. Oral evidence was given by the POM, the COM, both psychologists, the author of the psychiatric assessment and the Applicant himself. Closing written submissions dated 10 October 2025 were subsequently provided by the Applicant's legal representative.[14]Risk factors identified by the Panel were expressed as: a willingness to use violence; poor consequential thinking skills; willingness to carry weapons; pro criminal lifestyle and associates; substance misuse; dealing in drugs and being involved in that lifestyle; non-compliance with orders; financial gain; inability to resolve a conflict situation in a positive way; impulsivity; feeling threatened; poor coping skills; a deterioration in his mental health; minimisation of his risks; and a negative attitude towards those who follow the Islamic faith.[15]Protective factors specifically identified were the Applicant's current incarceration, the external factors in place to manage his risks, and wanting to be a father to his son.[16]By the time of the hearing the Applicant had held Enhanced Status under the Incentives and Earned Privileges Scheme since 2 February 2024, was working full time, remained in contact with his family, continued to engage with the prison mental health team and generally presented with positive attitudes towards members of staff. He had completed the Thinking Skills Programme (TSP) for the second time in prison and had reached Stage 3 of the Enhanced Behavioural Monitoring (EBM) Scheme. He remained on the Aspire Wing. There had been no proven adjudications since 2023.[17]The Applicant had received a negative behaviour entry on 14 September 2025 for vaping and another on 25 September for displaying a poor attitude in Healthcare when he called staff "parasites" . In subsequent discussions about it with his POM he explained that it was the second night he had not been given his medication, he was not being listened to and was being set up to fail.[18]The Applicant accepted at the final hearing that derogatory remarks he had made about Muslims at the first hearing under the current review had been inappropriate. He said it was only the "gang oriented Muslims" using religion as "gang recruitment" and he had "Muslim friends who are not like that". He explained that his intention had not been to be disrespectful but he felt he was being shut down because of his own beliefs.[19]According to the 12 September 2025 OASys Report, the Applicant's static risk factors place him in the category of offenders whose risk of offending generally is medium. When applying dynamic factors, the likelihood of non-violent offending was assessed as high but of violent offending as medium. The risk of serious recidivism (RSR) based on dynamic or changing factors was assessed as low at 2.72% over the next two years.[20]The risk of serious harm to the general public in the event of any reoffending in the community was assessed as high. To children, any known adult and to prison and probation staff it was assessed as medium.[21]In her evidence, the prison psychologist confirmed her assessment, taking into account the Applicant's mental state, that his risk remained high. The psychologist instructed on behalf of the Applicant considered the risk to be moderate to high. At the hearing the psychiatrist witness confirmed his diagnosis of schizoaffective disorder, and that his risks in the main have been independent of his mental health. In his view, the main risk factor is drug misuse.[22]Both psychologists, the Applicant's POM and the COM agreed that there was no further core risk reduction work required to be undertaken in custody.[23]There had been no evidence of any violence on the part of the Applicant since the assault occasioning actual bodily harm committed over four years ago in February 2021. The Relevant Law[24]The Panel correctly sets out in its Decision dated 17 October 2025 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[25]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)). Decisions concerning the termination, amendment, or dismissal of an IPP licence as in this case, are also eligible for reconsideration (rule 31(6) or rule 31(6A)).[26]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).[27]A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6 . Irrationality[28]The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene in these words:
" if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere"
. The same test applies to a reconsideration panel when determining an application on the basis of irrationality.[29]In R(DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) a Divisional Court applied this test to Parole Board hearings in these words at para 116:
"the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. "
[30]In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Saini J set out what he described as a more nuanced approach in modern public law which was "to test the decision maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the panel's expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied". This test was adopted by a Divisional Court in the case of R(on the application of the Secretary of State for Justice) -v- the Parole Board 2022 EWHC 1282 (Admin) .[31]As was made clear by Saini J this is not a different test from the Wednesbury test. The interpretation of and application of the Wednesbury test in parole hearings as explained in DSD was binding on Saini J.[32]It follows from those principles that, in considering an application for reconsideration, the reconsideration panel will not substitute its view of the evidence for that of the panel who heard the witnesses.[33]Further, while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses. Procedural unfairness Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed, or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision. In summary an applicant seeking to complain of procedural unfairness under rule 28 must satisfy me that either:(a) express procedures laid down by law were not followed in the making of the relevant decision;(b) they were not given a fair hearing;(c) they were not properly informed of the case against them;(d) they were prevented from putting their case properly;(e) the panel did not properly record the reasons for any findings or conclusion; and/or(f) the panel was not impartial. The overriding objective is to ensure that the applicant's case was dealt with justly. Error of law An administrative decision is unlawful under the broad heading of illegality if the panel: a) misinterprets a legal instrument relevant to the function being performed; b) has no legal authority to make the decision; c) fails to fulfil a legal duty; d) exercises discretionary power for an extraneous purpose; e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or f) improperly delegates decision-making power. The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. Other[39]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin) and R (Hutt) v Parole Board [2018] EWHC 1041 (Admin) . The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;(b) the likeliness of the prisoner to comply with conditions of temporary release(c) the likeliness of the prisoner absconding; and(d) the benefit the prisoner is likely to derive from open conditions.[40]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
" there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning."
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295 , which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture.[41]In Oyston [2000] PLR 45 , at paragraph 47, Lord Bingham said:
" It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship. "
[42]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. Reconsideration as a discretionary remedy[43]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel's decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Secretary of State[44]In its email message dated 14 November 2025, PPG on behalf of the Secretary of State confirmed that it offered no representations in response to the application for reconsideration. Discussion[45]The Applicant has raised no challenge to the original decision to recall him which arose from the commission of a criminal offence of which he was subsequently convicted. No issue has arisen on that score.[46]It is submitted on behalf of the Applicant that the prison psychologist gave misleading evidence at the hearing which materially affected the Panel's Decision. The submissions include a reminder that, in her 20 August 2025 Addendum Report, the prison psychologist concluded that the Applicant's risk could be managed in the community. Furthermore, in the subsequent joint report, both psychologists agreed that his risks would not be imminent and that they could be managed in the community with a robust RMP.[47]However, in her oral evidence at the hearing, the prison psychologist withdrew her support for release. She said that, when she went to meet him to disclose the addendum report a week after it was provided, he presented with rigid thinking about Muslims, stating that he wanted people to open their eyes. She also said that he raised concerns about whether the Panel Chair could provide an independent assessment of him and that this was based on an assumption about her faith.[48]The Panel notes in its Decision that the Applicant had made derogatory comments about the Prophet Mohammed at the conclusion of the initial hearing on 15 May 2025, saying that he had studied the religion and knew what he was talking about.[49]The Panel notes in its Decision that, when asked by its psychologist member whether that behaviour was appropriate, he replied "probably not, I don't think anyone's behaviour was appropriate. I was being shut down for that one comment. I don't feel at risk from all Muslims in prison just some. It's just the gang oriented Muslims and they use religion as gang recruitment and they have a list of names and you don't want to be put on that list. I have Muslim friends who are not like that".[50]The Decision further states that, having both considered in their written reports that the RMP was robust and that the Applicant's risks could be managed in the community, neither psychologist was confident at the hearing that the RMP was sufficient to do so. The Panel concluded that the RMP was not sufficiently robust and accepted the view of the psychologist witnesses that there was a gap in it. The COM considered that additional monitoring could be carried out by checking devices and associations and requiring permission to attend political meetings.[51]The legal representative points out that the COM gave evidence about the RMP after the two psychologists. In their oral evidence, both psychologists had expressed lack of confidence in the RMP being sufficiently robust in relation to move on accommodation after Approved Premises and the lack of current mental health support in place in the community.[52]Where opinions about risk and their management are expressed in reports by professional witnesses which they reverse at a hearing, there is a clear duty on a Panel to explore in sufficient depth the reasons for such change. In this case, the Panel failed to do so. The refusal to allow further questions to be put to the prison psychologists after the COM had concluded his evidence and the failure to give the Applicant the opportunity to give further evidence himself was procedurally unfair.[53]If the Panel believed the RMP to be deficient it should have considered whether to adjourn for further enquiries and additional measures in respect of move on accommodation and community mental health support. It failed to do so. That also was procedurally unfair.[54]In my judgment the Decision reasons, based as they are on the evidence and submissions read and heard by the conclusion of the hearing and the submissions subsequently received, does not meet the high bar for irrationality. Decision[55]Accordingly, whilst I do not find there to have been an entirely irrational conclusion, I do consider, applying the test as defined in case law, that the decision not to release the Applicant was procedurally unfair. I do so solely for the reasons set out above in that the Applicant was not given a fair hearing and was prevented from putting his case properly. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. HH Judge Graham White 09 December 2025